Date: Mon, 11 Aug 2008 20:04
From: David Cheifetz
Subject: Factual Causation Follies - Bailey v The Ministry of Defence & Anor (EWCA)
As good a way as any to close the discussion of Bailey [Bailey v The Ministry of Defence & Anor  EWCA Civ 883 (29 July 2008)] may be to point out that two of the panel on Bailey (Sedley and Smith LJ) were on the panel of Novartis Grimsby Ltd v Cookson  EWCA Civ 1261 (29 November 2007) and they laid the basis for Bailey in that decision, yet they don't mention Novartis. Smith LJ wrote the Novartis decision.
Novartis is a cumulative cause case, too: cigarette smoking and exposure to a carcinogenic substance at work due to the employer's fault being the cumulative causes of the cancer. The trial judge accepted the plaintiff's expert evidence that "the contribution of smoking at 25%-30% and that of occupational exposure at 70%-75%" and the CA held it was open to the trial judge to accept that evidence [paras. 50, 60] The trial judge held that this was sufficient for a finding that the cancer was a probable cause. The CA affirmed this finding.
Read from para 65 onwards.
In para 65, we are told that the trial judge held "that he could not distinguish between the situation in Bonnington and that in the present case. The doctors had agreed that occupational exposure to aromatic amines and smoking were at least additive factors in the causation of bladder tumours. He was satisfied that the occupational exposure had materially contributed to the development of the respondent's tumour".
In para 71, Plaintiff's counsel seems to have conceded that Bonnington is but-for, now, whatever it once meant.
Mr Cowan submitted that the Recorder had not erred and that Bonnington was still good law. However, he accepted that cases to which that principle would formerly have applied are nowadays usually subject to apportionment, provided that the necessary information is available to the court to carry out that exercise in a fair and sensible way. His main point was that Bonnington merely demonstrated another way of stating the general rule of causation, namely that the claimant must show that the negligent exposure has probably caused his condition. It was, to all intents and purposes, another way of putting the 'but for' rule. In the alternative, if the Recorder had erred by not applying the 'but for' rule, Mr Cowan submitted that, if he had applied it, he would have been bound to find in favour of the respondent.
The CA seems to have not agreed (maybe) about the then-and-now for Bonnington. In para 72 and 73, we see the quibble that may be the way the Bailey panel would have distinguished Novartis - though one wonders why they didn't refer to it. In para  "does the principle in Bonnington apply only to 'divisible' conditions, where the various exposures contribute to the severity of the disease or does it also apply to cases in which the various exposures contribute only to the risk that the disease will develop? Another uncertainty is the extent of the [Fairchild] exception".
 If the facts of this case were that the respondent's occupational exposure to carcinogenic amines had contributed to the risk of his developing bladder cancer but to a lesser extent than the contribution made by smoking, these difficult issues would have to be resolved. But in my view, they do not. It would have been open to the Recorder to accept Mr Barnard's evidence only in part and to have held that the occupational exposure, although significant, had made only a minor contribution to the overall exposure and risk. Indeed, by invoking Bonnington, and the concept of material contribution, the Recorder might be thought to have accepted Mr Barnard's evidence only to that limited extent. However, that is not what the Recorder said. He said that he preferred the evidence of Mr Barnard to that of Professor Cartwright. He gave cogent reasons for that preference and he did not qualify his preference or acceptance in any way. Why the Recorder thought it necessary to go into Bonnington at all I do not know, but I am not prepared to infer that he had any reservations about Mr Barnard's evidence.
So, Bailey was the example hinted at in para 73; that is the tortuous "contribution" wasn't found to be more than non-tortious.
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